Wong v Barker - [2017] WASC 311

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: WONG -v- BARKER [2017] WASC 311

CORAM: SMITH AJ

HEARD: 6 OCTOBER 2017

DELIVERED : 6 OCTOBER 2017

FILE NO/S: SJA 1023 of 2017

BETWEEN: KUM KIT WONG
Appellant
AND
ANDREW JAMES BARKER
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :CHIEF MAGISTRATE S A HEATH
File No  :PE 51311 of 2016, PE 51312 of 2016

Catchwords:

Criminal law - Appeal against sentence - Whether failure to consider whether to make spent conviction order - Whether failure to make spent conviction order a miscarriage of justice - Whether order for spent conviction should be made

Legislation:

Criminal Appeals Act 2004 (WA), s 14, s 40
Magistrates Court Act 2004 (WA), s 31
Sentencing Act 1995 (WA), s 39, s 45

Result:

Leave to appeal granted
Appeal allowed

Category: B

Representation:

Counsel:

Appellant: Mr N J Terry
Respondent: Ms J A Godfrey

Solicitors:

Appellant: Holborn Lenhoff Massey
Respondent: State Solicitor for Western Australia

Case(s) referred to in judgment(s):

B v Murphy [2016] WASC 78
Brewer v Bayens [2002] WASCA 271
Costello v Bennasar [2012] WASC 406
Frewen v Dalgreen [2014] WASC 407
Lee Suarez v Cutler [2012] WASC 171
Mohamed v Wellinger [2012] WASC 470
Naik v Morgan [2013] WASC 336
R v Tognini & McGuire [2000] WASCA 31; (2000) 22 WAR 291
T v Murphy [2017] WASC 59
Wright v McMurchy [2012] WASCA 257
SMITH AJ:
(This judgment was delivered extemporaneously on 6 October 2017 and has been edited from the transcript.)

On 22 February 2017, the appellant was convicted on pleas of guilty of one count of common assault in circumstances of aggravation, and one count of common assault. He was fined $1,000 and ordered to pay $98.50 on each charge. The appellant seeks leave to appeal against each sentence on two amended grounds of appeal. The amendments sought are not opposed by the respondent.

Grounds of appeal

The grounds of appeal are as follows:
1.The learned magistrate erred in law by failing to consider granting a spent conviction pursuant to s 45 of the Sentencing Act 1995 (WA) in circumstances where the discretion to grant a spent conviction was enlivened.
2.A miscarriage of justice was caused by the learned magistrate not making an order for a spent conviction pursuant to s 45 of the Sentencing Act1995 (WA).

The facts and submissions before the Magistrates Court

The appellant did not appear before the Magistrates Court on 22 February 2017. He was, however, represented by counsel, who entered pleas of guilty on his behalf.
In relation to the common assault in circumstances of aggravation, the facts were that, on Saturday, 10 September 2016 at 3.31 pm, the appellant was present in the front garden of a house in Saunders Street, Como. The appellant had become involved in a verbal altercation with the victim, who stood in her own front yard. The appellant walked away from the victim and picked up a standard garden hose, which was attached to a water tap against the wall around 2 m away. The appellant turned on the water tap and deliberately sprayed the victim, using his thumb of the end of the hose to create a pressurised spray. The water landed on the victim, soaking her whole body. The appellant sprayed the victim with water on a second occasion in the same matter, while trying to spray another victim. The victim of this assault is 82 years of age.
The facts of the charge of common assault were that, at the same time and place the appellant was in a verbal altercation with the second victim's mother, being the victim of the previous offence. The second victim arrived in the location and started to record the incident on her iPad. The appellant walked away from her, picked up the hose, turned on the water tap and deliberately sprayed her with water, using his thumb again over the end of the hose to create a pressurised spray. The water landed on the second victim's head and face and she turned away from the water and it was sprayed on her back. The appellant then walked away and returned to his home.

Application to adduce further evidence

Pursuant to s 40(1)(e) of the Criminal Appeals Act 2004 (WA), an appeal court may admit any evidence not otherwise specifically allowed under s 40(1). Where an appeal is against sentence, the court may have regard to any relevant matter that has occurred between when the offender was convicted and when the appeal is heard. The appellant seeks to admit into evidence an affidavit sworn by him on 14 September 2017.
The affidavit and annexures contain information and evidence of matters which go to the appellant's good character and the likely consequences the convictions will have on his future career. As the additional material in the appellant's affidavit goes to these matters, the respondent does not object to the affidavit being admitted into evidence in the appeal.
The affidavit will therefore be admitted as evidence in the appeal.

Power to make spent conviction orders - legal principles

The power to make a spent conviction order is contained in s 39(2) of the Sentencing Act 1995 (WA), which empowers a court sentencing an offender to impose a fine with or without making a spent conviction order. The preconditions to making a spent conviction order are set out in s 45(1) of the Sentencing Act. Section 45(1) provides:
(1)Under section 39(2), a court sentencing an offender is not to make a spent conviction order unless ‑
(a)it considers that the offender is unlikely to commit such an offence again; and
(b)having regard to ‑
(i)the fact that the offence is trivial; or
(ii)the previous good character of the offender,
it considers the offender should be relieved immediately of the adverse effect that the conviction might have on the offender.
If the preconditions in s 45(1) are met, the court has a discretion, not a duty, to make, or not make, a spent conviction order. In R v Tognini & McGuire [2000] WASCA 31; (2000) 22 WAR 291 (Murray J, Malcolm CJ & Wallwork J agreeing) said at [27] ‑ [28]:
In my opinion it is appropriate to conclude that having regard to its effect on the ordinary operations of the Spent Convictions Act, the discretionary power to make a spent conviction order conferred by s 45 of the Sentencing Act should be regarded as being of an exceptional character. If the necessary pre-conditions are established, the court should go on to have regard to the seriousness of the offence before it in the circumstances of its commission and in the circumstances personal to the offender. It should take as the ordinary rule the fact that a conviction will be a matter of record with all the consequences that may entail into the future. It should therefore look to see whether there is some particular circumstance to show that it would be desirable, not only from the point of view of the offender but also, having regard to his or her rehabilitation, from the point of view of the community, why the adverse effect of the conviction should be immediately set aside.
That may often be found in the fact that the conviction, if not declared to be spent, might be a particular impediment to the offender following a particular career, practising a particular profession or undertaking particular employment. It may be that it will be the case that that would be productive of exceptional hardship to the offender and his family, or it may simply be that it can be seen that to relieve the offender of the adverse effects of the conviction will positively aid that person's rehabilitation in a way which may be seen to best accord with the interests of the community. The court may be aided to reach that conclusion if it thinks that there is no pressing public interest in being able to continue to have access to the fact of conviction as part of the process of securing the protection of the community.
It is expected that generally those who contend they satisfy the criteria laid down in s 45(1) of the Sentencing Act will demonstrate that fact by convincing evidence: Brewer v Bayens [2002] WASCA 271 [14] (Burchett AUJ).

Ground 1 of the appeal: did the magistrate fail to consider granting a spent conviction order

When sentencing the appellant, his Honour did not expressly mention the sentencing option of making a spent conviction order. However, a failure to do so does not mean it was not considered by his Honour. Section 31 of the Magistrates Court Act 2004 (WA) provides that a magistrate 'need only identify the law that the Court has applied in coming to its decision and give the reasons for doing so; and need not canvass all the factual and legal arguments or issues arising in the case'. In Mohamed v Wellinger [2012] WASC 470, Edelman J said that [36] ‑ [37]:
A magistrate will not always be required expressly to advert to whether a spent conviction should be imposed. In relation to issues of law, s 31 of the Magistrates Court Act 2004 (WA) requires that a magistrate 'need only identify the law that the Court has applied in coming to its decision and give the reasons for doing so'. A failure expressly to mention a sentencing option does not necessarily mean that it was not considered.
Whether a magistrate should advert expressly to consideration of a spent conviction will depend upon all the circumstances. The reasons given by a magistrate must be read as a whole in all the circumstances and the reasons include findings which can be inferred. A relevant circumstance is whether it is reasonably arguable that the power to grant a spent conviction is enlivened. Another relevant circumstance is whether a spent conviction is sought; if it is not sought, the reasons of the learned magistrate would be expressed in response to matters not canvassed in argument. However, in relation to the factor of whether a spent conviction is sought, it is also a relevant factor whether an offender is legally represented.
In this matter, it is argued on behalf of the appellant that there was sufficient evidence and material before the learned Chief Magistrate to enliven the power to consider granting a spent conviction.
Counsel for the appellant at first instance canvassed the following matters:
(1)The appellant and the victims had been in dispute for some time over construction of structures on common property, which led to restraining orders and undertakings on both sides. There had been abuse on both sides, with the first victim directing racial abuse at the appellant, concerning his Chinese background.
(2)The appellant was unlikely to commit such an offence again. He had left the premises where the incident occurred. He was currently seeking work overseas and was unlikely to return to a situation where he would be back in dispute with his neighbours. He had moved out and would not be back.
(3)The offending was relatively trivial and at the lowest end of the spectrum, and the nature of the assaults was so trivial that the Chief Magistrate could consider imposing no sentence.
(4)The court could find the appellant was of good character.
(a)The appellant had one run in with the law in 2005 for a traffic‑related offence.
(b)There were character references before the learned Chief Magistrate that spoke highly of the appellant's character and suggested that spraying his next-door neighbours with water was out of character for him.
(5)Two of the character references before the learned Chief Magistrate canvassed the adverse effects that a criminal conviction would have upon the appellant's profession as an accountant.
Although the character references were before the court, the learned Chief Magistrate was not directed specifically to the effect that a criminal conviction would have on the appellant's profession as an accountant. One of those references was a letter dated 15 September 2016 from Sean Myers, a cost and management accountant, who stated that the appellant is:
a fellow member of the Certified Practice of Accounting Australia, … [with] high ambition of climbing up the corporate ladder; … [and that a] criminal record against him will destroy his chance of obtaining employment in his profession.
The second reference was a letter dated 15 September 2016 from Mr Tommy Heng, a chartered accountant, who also stated that:
Any criminal record against [the appellant] will destroy his chance of obtaining employment in his profession as an accountant.
In response to the submission from the appellant's counsel that the nature of the assaults was trivial, the learned Chief Magistrate referred to a victim impact statement, and made the observation that that was not quite what the victim said. The learned Chief Magistrate went on to say about the circumstances of offending that it was a cold day, the victim was suffering from bronchitis at the time, had had knee and hip operations, was not very mobile, was sprayed with water, became very cold, and as a result suffered ongoing problems with respect to her hearing.
In response to the submission that there had been a tumultuous relationship between the parties, with ongoing restraining orders and undertakings on both sides, the learned Chief Magistrate referred again to the victim impact statement. His Honour said that it seemed that the dispute related to the construction by the appellant of structures on common property, and, that since the victim complained and took action in the State Administrative Tribunal, the appellant had continued to abuse them.
The learned Chief Magistrate found that it was not possible to determine 'where the rights and wrongs lie'. However, his Honour accepted that the assaults arose in the context of an ongoing dispute between neighbours, and found that the appellant's acts in escalating it to a form of physical assault, particularly on an elderly woman, albeit by spraying water on her, was not acceptable conduct.
It is clear that the learned Chief Magistrate did not make any express reference to whether he had considered whether a spent conviction order should be made. Nor did he make a spent conviction order. It is also clear that no application was made to the learned Chief Magistrate for a spent conviction order.
The learned Chief Magistrate appeared not to accept the submission that the offence was trivial. His Honour made no specific finding about the circumstances of the ongoing dispute between the appellant and the victims.
The respondent in this appeal argues that where counsel for the appellant at first instance made a submission that no sentence should be imposed, it is to be inferred from the learned Chief Magistrate's reasons that he considered whether to grant a spent conviction order.
However, having read the reasons given by the learned Chief Magistrate, I do not agree. Firstly, it is apparent from the emails sent to the appellant on 1 December 2016 and 5 December 2016 from solicitors who at that time acted for the appellant in the proceedings before the learned Chief Magistrate, that an application for a spent conviction order would be made to the Magistrates Court. Whilst the appellant was represented by counsel, no such order was sought. Why that is so is not known.
Of importance in this appeal, the learned Chief Magistrate was informed by counsel that the appellant was seeking work overseas and had left Western Australia. The implication from what was said by counsel was that the appellant had no intention of returning to occupy the premises in question, as he had no intention of returning to Western Australia. From this submission it can be inferred that the learned Chief Magistrate considered that the appellant was not seeking a spent conviction order. However, in the circumstances, the learned Chief Magistrate erred in law by failing to consider whether to make a spent conviction order, when there was sufficient material before his Honour to enliven the discretion to make a spent conviction order.
For these reasons, I am of the opinion that ground 1 of the appeal is made out. Leave to appeal on ground 1 should be granted and the appeal allowed.
It follows, therefore, the question of whether to make a spent conviction order should be determined afresh by this court, pursuant to s 14(1)(d) of the Criminal Appeals Act.

Ground 2 - miscarriage of justice

Alternatively, if I am wrong in respect of ground 1 and no such error can be established on the part of the learned Chief Magistrate, leave to appeal may be granted if the failure to make a spent conviction order amounted to a miscarriage of justice.
The principles to be applied were set out by Le Miere J in Naik v Morgan [2013] WASC 336 at [16]:
The question for the appeal court on an appeal seeking the making of a spent conviction order is whether the failure of the magistrate to make a spent conviction order involved a material error of fact or law revealed either by the reasons of the sentencing magistrate or by implication from the failure to make a spent conviction order in circumstances which required the magistrate to make such an order or whether there has been a miscarriage of justice. The question is not whether the magistrate had a sufficient reason not to make a spent conviction order. A court of appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised the discretion in a different manner: Lowndes v The Queen (1999) 195 CLR 665, 671 ‑ 672.
These observations were also made by Banks‑Smith J in T v Murphy [2017] WASC 59 [23].
However, even if the appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers no substantial miscarriage of justice has occurred: Criminal Appeals Act s 14(2).
In considering whether there has been a miscarriage of justice in not making a spent conviction order, regard can be had to the material which is before this court, as well as the material that was before the learned Chief Magistrate: Costello v Bennasar [2012] WASC 406 [15] (EM Heenan J).
The questions to be asked when considering whether to make a spent conviction order are:
(1)Is the offender unlikely to commit such an offence again?
(2)Is the offence trivial or is the offender of previous good character?
(3)Should the offender be relieved immediately of the adverse effects that the conviction might have on the offender?
Dealing with the first question, s 45(1) of the Sentencing Act requires a conclusion that the offender is unlikely to commit such an offence again, not that it is certain that they will not do so: Lee Suarez v Cutler [2012] WASC 171 [25] (Beech J).
It is clear from the appellant's affidavit that he accepts responsibility for his actions and is ashamed of his conduct on the day. His character references speak highly of him. The following extracts give a picture of a young man whose actions were entirely out of character.
Mr Sean Myers wrote:
I am a qualified Costs and Management Accountant (CIMA) and currently work for Carey Mining … as a Management Accountant.
Kum Kit Wong was my assistant for two and a half years from 2011 to 2013 during my employment as a Senior Cost Controller with AngloGold Ashanti Limited, Perth, Western Australia. Mr Wong commenced working with me as an Assistant Accountant for the Tropicana Gold Project. Throughout his employment with me, Mr Wong demonstrated at all times a professional and ethical attitude towards his work and his colleagues. He was a motivated and dedicated employee. It was a pleasure to witness his professional development during that time. Mr Wong is a fellow member of Certified Practice of Accountancy Australia.
…
I was very surprised to learn of the charge now before the Court as the nature of the alleged offence is wholly inconsistent with Mr Wong's professional and personal reputation. He has explained to me that the alleged offence occurred due to ongoing racial remarks from his neighbour and he has expressed to me his genuine regret and significant embarrassment over the matter.
Mr Tommy Heng wrote:
I have known Mr Kum Kit Wong … for 8 years. I have come to know Mr Wong from mutual friends. Since knowing him we have been in frequent contact almost once every month. Mr Wong and his family has grown to become one of our close friend. I have been on overseas travel with Mr Wong and he has always been a well‑mannered individual who respect others.
…
I can say that in all the time I have known him, Mr Wong has been a polite, patient and gentle person. I was very surprised to learn of the charge now before the Court as the nature of the offence is wholly inconsistent with Mr Wong's behaviour and character. Mr Wong has discussed the matter with me at length. He had complaint to me in the past that his neighbour had on several occasions been racially abusing him and his family. He has expressed to me his genuine regret and significant embarrassment over the matter. I believe any of the behaviour he displayed that caused him to be charged with assault was a one‑off event.
Even though he has been charged with assault I would continue to trust Mr Wong as I believe he is a person of non‑violent nature. Mr Wong is a high achiever and has the potential to hold high calibre position in an organization.
Dr Wai Sam Hoong wrote:
I have known Mr Wong as a well‑educated, decent, patient and gentle person.
Mr Edward Stanley wrote:
I have known Mr Kum Kit Wong socially for a period of approximately 10 years.
In the time I have known him I have found him to be a gentle, kind and considerate person who is also respectful of others, particularly to elderly persons.
…
In my opinion I sincerely believe that Mr Kum Kit Wong is a decent person of good repute.
Mr John Merrill wrote:
I have known Mr Kum Kit Wong … for 4 years. We came to know each other from living as neighbour in his current residence.
…
He is very upset about the incident and show remorse for what he has done.
He has been under stress due to his ongoing dispute with his neighbour in regards to his garden renovation. On several occasion I have witness his neighbour racially abused him and his wife and Mr Wong would just walk off ignoring her.
I can say that in all the time I have known him, Mr Wong has been a decent, polite and gentle person. I believe any of the behaviour he displayed that caused him to be charged with assault was a one‑off event. Even though he has been charged with assault I would continue to trust Mr Wong is a person of non‑violent nature.

Counsel for the appellant has informed the court that the appellant is not sure whether he will return to Australia in the future. He, however, still owns the property at which the offences occurred and may return to work in Australia some time in the future.
Whilst the appellant could sometime return to live in Western Australia at the property at which the offences occurred, I accept that the appellant's antecedents and his remorse for his actions suggest that it is unlikely that he will commit such an offence again. Consequently, the answer to the first question is yes.
The second issue is whether the appellant was previously of good character. Although at the hearing of the appeal this court was provided with the court outcomes history for the appellant, in which details are provided of two offences for which he was convicted on 28 January 2005, I do not find it is necessary to have regard to those offences, because the respondent concedes the appellant is of good character. Consequently, the answer to the second question is yes.
The third issue is whether the appellant should immediately be relieved of the adverse effects the conviction might have upon him.
In determining whether to exercise the discretion to make a spent conviction order, the court should have regard to all of the circumstances of the case, to the interests of the offender and to the public interest in the fact of a conviction. (On the basis that publicising a conviction is part of securing the protection of the community): Tognini [27] ‑ [28]; Brewer v Bayens [16] ‑ [18] and Wright v McMurchy [2012] WASCA 257 [59] (Pullin JA, Buss & Mazza JJA agreeing).
In Frewen v Dalgreen [2014] WASC 407 [18], [20] - [21], Beech J referred to and summarised the principles from Tognini: as follows:
Among others, the following propositions emerge from these cases:
(a)the fact that a conviction will be a matter of record, with all the consequences that may entail, should be taken as the ordinary rule;
(b)the discretionary power to make a spent conviction order should be regarded as being of an exceptional character to be sparingly exercised in a clear case; and
(c)in determining whether to exercise that power, the court should consider the seriousness of the offence in the circumstances of its commission and the circumstances personal to the offender.
…
One aspect of the public interest is the effect of an order on general deterrence. The prospect of the exposure to public scrutiny of a conviction may have a general deterrent effect.
Another aspect of the public interest may be a public interest in an employer or potential employer being aware of the conviction insofar as the conviction may be relevant to assessing the person's reliability or suitability for a particular type of work.
As set out in Tognini [28], one relevant matter that could be raised is that if a conviction is not declared to be spent, it may be productive of hardship to the offender's family.
This is an issue raised in the appellant's affidavit. In his affidavit he states that:
When we were living in Perth, my wife ran a family day care centre from home. I was also required to have a current police certificate, in order for her to operate the centre. My wife may not be able to operate such a centre in the future, if the assault convictions are not spent.
However, the appellant's wife's prospects for work in Perth is a matter that cannot bear much weight in balancing the interests of the public and the offender in this matter, as there is no evidence or material before this court that, if the appellant and his wife were to return to Western Australia to work, his wife would seek to once again run a child care business from their home.
Turning to whether there will be specific and adverse consequences of hardship on the offender himself, as a result of impact on his employment, Beech J in B v Murphy [2016] WASC 78 made the point at [29]:
The fact that the appellant does not point to specific and concrete adverse consequences is not in itself necessarily fatal to an application for a spent conviction order. For example, in granting a spent conviction order in M v Seidner, Pritchard J referred to the difficulty in determining whether the appellant's conviction was likely to impact adversely on future employment prospects, concluding that the possibility could not be excluded. Nevertheless, the presence or absence of information showing a specific or concrete adverse consequence is a factor to be weighed in the court's analysis.
However, this is not a matter where there is no evidence of adverse consequences to the appellant if a spent conviction order is not made. The appellant raises some matters which he says will result in adverse consequences to himself in his affidavit, if the criminal convictions are not spent. In his affidavit he states that:
33.Due to the recent downturn in the resource sector of the economy in Australia, it has been difficult to find employment as a project accountant in the resources sector.
34.In December 2016, I came to Malaysia looking for work. My wife and children also came to Malaysia in January 2017.
35.Shortly after arriving in Malaysia, I obtained work as contract corporate finance consultant. I obtained this contract before being convicted of the assault charges.
36.Unless I am granted a spent conviction for these charges, I will be required to notify CPA Australia of the convictions pursuant to the CPA Australia By‑Law 3.16. and for CPA Australia to make a determination as to whether I remain a fit and proper person to practice as a Certified Practising Accountant.
The appellant argues that if the convictions are not declared to be spent, he will be impeded in being able to pursue a career as an accountant in Australia and in Malaysia.
Although the appellant is a certified practising accountant, it is accepted that it is not necessary for him to have certification to work as an accountant. However, if he does wish to work in Australia and to retain his registration as a certified practising accountant, he will be required to notify CPA Australia of the convictions and a determination will need to be made by that association as to whether he remains a fit and proper person to practice as such. Whether CPA Australia would allow the appellant to continue to be registered without a spent conviction order is a matter for the association.
Irrespective of whether the appellant is registered as a CPA to work as an accountant, the appellant also states in his affidavit that when he has sought work in the past, he has been required to provide police clearance certificates for all accountancy jobs, and he may have to do so in the future to apply for accountancy jobs in Malaysia.
The appellant relies upon the opinions of two of his referees, who are accountants, to establish that with a record of convictions he will be unable to obtain employment as an accountant in Australia unless a spent conviction order is made. Whilst the source of the opinions of the referees is not identified in the references, in my view the opinions provide some support to the appellant's submission that it would be difficult to obtain work as an accountant in Australia without a spent conviction order.
I am also of the view there is insufficient material before me to make any finding about the appellant's future prospects of employment as an accountant in Malaysia.
However, I am satisfied that there is evidence before this court to establish that, without a spent conviction order, the appellant may find it difficult to pursue his career as a certified practising accountant, or at least as a project accountant.
The public interest in the fact of the convictions of the appellant, in that he should be exposed to public scrutiny, is to be balanced against facilitating the appellant in pursuing his career. Having considered all of the evidence, I am satisfied that this is an exceptional case, within the principles enunciated in Tognini, so that the appellant should be relieved from the normal consequences of his convictions.
I am not persuaded that in this case the public has an interest in knowing of the appellant's convictions of aggravated assault and common assault. Although the assaults were not trivial (as the learned Chief Magistrate apparently concluded because of the consequences of spraying an elderly victim with water, whose medical conditions rendered her vulnerable to cold water on a cold day), in circumstances where these assaults were clearly out of character, I am of the opinion that prospective employers of the appellant need not know about the facts or circumstances of the assaults.
Further, I consider it is in the interests of the community that the appellant's capacity to work as an accountant not be restricted.
In addition, I am of the opinion that these offences are not relevant to the professional trust and confidence that the public is entitled to have in an accountant. Nor are there particular circumstances raised which suggest there is a strong interest and value in members of the community generally being able to determine whether a person has been convicted of offences of this nature that would outweigh the matters of public interest that favour the making of a spent conviction order in this case.
For these reasons, I do not consider that there are any public interest issues which outweigh the matters that support the exercise of a discretion in favour of making a spent conviction order.
Accordingly, the failure to make a spent conviction order amounted to a substantial miscarriage of justice such that ground 2 of the grounds of appeal is made out. Leave should therefore be granted and the appeal allowed.
For the reasons set out above, on considering afresh whether to make a spent conviction order, I have concluded that such an order should be made in relation to both the common assault and aggravated assault convictions.